High court declines to force JobsOhio agreement

JULIE CARR SMYTH

5:36 PM, Sep 28, 2012

(Photo: Google images)

COLUMBUS, Ohio - A divided Ohio Supreme Court tossed a complaint Friday that state officials hoped might resolve legal concerns about the state's new private job-creation entity and seal JobsOhio's right to run the state liquor business and use its profits.

In a 4-2 decision, justices said the high court was the wrong venue for JobsOhio's complaint against state Commerce Director David Goodman.

The action sought to force Goodman to sign an agreement between the state commerce and budget departments and JobsOhio transferring rights to the liquor business to JobsOhio for 25 years. The deal is worth some $1.4 billion, with the state getting the first $500 million when the transfer occurs.

Budget and JobsOhio leaders signed the agreement in August. Goodman declined because questions of JobsOhio's constitutionality have not been resolved.

Justices threw out the challenge in part because they realized that a lawsuit by an agency envisioned by Gov. John Kasich suing one of Kasich's Cabinet directors had a purpose beyond securing Goodman's signature.

Goodman said at the time the complaint was filed that he fully supported JobsOhio but didn't feel he could move forward while the suit was undecided.

Justices wrote, "First, a review of the complaint -- as well as Goodman's motion for judgment on the pleadings -- indicates that the real object sought is a declaratory judgment, which this court lacks original jurisdiction to grant."

"Although JobsOhio's complaint is couched in terms of compelling ODC Director Goodman to comply with his affirmative duty," they added, "... it actually seeks an expedited ruling from this court declaring (bills creating JobsOhio) constitutional, so as to preclude any further challenges."

Kasich's office said JobsOhio is doing good work even with the liquor deal in limbo.

"JobsOhio has been an essential part of Ohio's success in creating jobs and getting our state back on track," spokeswoman Connie Wehrkamp said in a statement. "We've got more work to do, however, because too many Ohioans are still out of work. A strong, capable JobsOhio will continue to be instrumental to Ohio's economic recovery."

The transfer process has been delayed by a lawsuit by the liberal policy group ProgressOhio and two Democratic state lawmakers, Rep. Dennis Murray of Sandusky and Sen. Mike Skindell of Lakewood, challenging the constitutionality of turning public money over to a private entity.

The 10th District Court of Appeals in Columbus upheld a judge's decision to dismiss the challenge on the grounds that opponents didn't have legal standing. ProgressOhio appealed the decision to the state Supreme Court, which hasn't yet ruled on that issue of legal standing. The libertarian 1851 Center for Constitutional Law has sided with ProgressOhio in legal filings.

ProgressOhio Executive Director Brian Rothenberg said the court's decision leaves open the question of what legal avenue exists to challenge JobsOhio.

"Once again this court said there are legitimate constitutional issues that have to be aired," he said. "So, with $550 million of state money being dangled in the hands of a private corporation like JobsOhio, when will the state allow a court to make a ruling on its constitutionality?"

JobsOhio spokeswoman Laura Jones said the action was filed in hopes the high court would resolve constitutional issues surrounding the new entity.

"We still believe that the legislation is constitutional," she said in an email. "We obviously would have preferred the court to weigh in, but declining to hear this case isn't a barrier to our mission to help create jobs in Ohio. We look forward to continuing to make progress in that important work."

Rothenberg blamed the administration -- not his group's lawsuit -- for delays in getting JobsOhio up and running.

"The bottom line is these are self-inflicted wounds by the Kasich administration," he said. "They could have let a court decide this over a year ago and rule on the constitutionality, but they decided to play these games of challenging our legal standing and this bizarre move to having Kasich's JobsOhio sue Kasich's Cabinet director."